The Federal Tort Claims Act (FTCA) allows individuals to sue the United States Government for certain torts committed by its employees. In this sense, the FTCA waives the traditional “sovereign immunity” that the government enjoys from civil lawsuits. Although federal courts have jurisdiction over complaints brought under the FTCA, cases are judged under the tort law of the state where the alleged injury occurred.

Recently, a federal judge in Atlanta addressed a potential conflict in the standards for bringing tort cases in Georgia state courts versus federal courts under the FTCA. The judge rejected the federal government’s efforts to dismiss the case. The underlying lawsuit remains pending before the court.

Stidham v. United States

The plaintiff is a military veteran. In 2010, he was injured in an automobile accident. A local hospital advised him that he would require knee surgery. The veteran sought a second opinion from a nearby Veterans Affairs hospital. The VA doctors said immediate surgery was inadvisable, and directed him to wear a knee brace instead.

A few days later, the veteran returned to the VA and was told he did not require surgery at all. Instead, he was prescribed a second, custom knee brace. It was nearly a year, however, before the VA procured the special brace. Consequently, the veteran said he suffered permanent knee damage during this time.

The veteran filed a medical malpractice suit against the government under the FTCA. The government moved to dismiss the complaint on the grounds that the veteran failed to include an affidavit, signed by a medical expert, identifying “at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Such affidavits are required under Georgia law when bringing a malpractice claim in state court.
The plaintiff argued, however, that the Georgia rule does not apply to FTCA complaints. Federal courts are governed by their own Federal Rules of Civil Procedure, which only requires a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” There is no requirement a malpractice complaint include an “expert affidavit.”

U.S. District Judge Thomas W. Thrash, Jr., agreed with the plaintiff and denied the motion to dismiss. He noted that while the 11th Circuit–the federal appeals court that oversees all district courts in Georgia–has not definitively ruled on this question, the practice in the Northern District of Georgia (dating back to at least 1999) has been not to apply the state’s expert affidavit requirement in FTCA cases. Judge Thrash found no reason to depart from that practice here.

That’s not to say the plaintiff will not have to eventually produce expert testimony in support of his medical negligence case. As Judge Thrash noted, the federal courts’ relatively loose pleading rules simply “represents a policy judgment that plausible claims which lack merit for evidentiary reasons should be disposed of on summary judgment.” But at this preliminary stage, it was sufficient for the plaintiff to simply present his malpractice allegations.